Shales and Commonwealth Bank of Australia (Compensation)
[2017] AATA 1369
•23 August 2017
Shales and Commonwealth Bank of Australia (Compensation) [2017] AATA 1369 (23 August 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2016/1138
GENERAL DIVISION )Re: Carole Shales
Applicant
And: Commonwealth Bank of Australia
Respondent
DIRECTION
TRIBUNAL: L M Gallagher, Member
DATE: 13 September 2017
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.in paragraph 8, deleting the second “2015” from “23 October 2015 2015”;
2.in line 5 of paragraph 21, replace the words “nor considered the issues relevant to the whether” with “nor considered the issues relevant to whether”;
3.in paragraph 36, replace the words “The Tribunal considers addresses this evidence” with “The Tribunal considers this evidence”;
4.in the line 4 of paragraph 42, replace the words “Ms Shales said that had been humiliated” with “Ms Shales said that she had been humiliated”;
5.in paragraph 66, the subparagraph identifier “(a)” be added to the first subparagraph;
6.in line 6 of paragraph 89, replace the word “bulling” with “bullying”;
7.in paragraph 98, the subparagraph identifier “(a)” be added to the first subparagraph;
8.in line 3 of paragraph 105, replace the words “anti-depressant medical” with “anti-depressant medication”;
9.in paragraph 113, the subparagraph identifier “(a)” be added to the first subparagraph;
10.in line 5 of subparagraph 113(c), inverted commas be placed after the word “plan”;
11.in paragraph 114, the subparagraph identifier “(a)” be added to the first subparagraph;
12.in line 3 of subparagraph 114(a), the word “measure” be replaced with “measures”;
13.in line 4 of paragraph 129, the word “psychologist” be replaced with “psychiatrist”;
14.in line 4 of paragraph 132, the words “is now way” be replaced with “in no way”; and
15.in paragraph 136, the subparagraph identifier “(a)” be added to the first subparagraph.
...................................................................
Member
Division:GENERAL DIVISION
File Number: 2016/1138
Re:Carol Shales
APPLICANT
Commonwealth Bank of AustraliaAnd
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:23 August 2017
Place:Perth
The decision under review is affirmed
...................[sgd].....................................................
L M Gallagher, Member
CATCHWORDS
COMPENSATION – Commonwealth employees – anxiety and depressed mood – pre-existing psychological condition - whether liable under section 24 and section 27 – whether applicant continues to suffer from injury – section 14 determination remains in force - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, s 4(1), s 5A(1)(a), s 5B(1)(a), s 5B(3), s 14, s 14(1), s 24, s 24(1), s 24(2), s 24(4), s 24(5), s 24(6), s 24(7), s 27, s 27(1)
CASES
Bennett and Comcare [2017] AATA 1269
Comcare v Mooi (1996) 69 FCR 439
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
REASONS FOR DECISION
L M Gallagher, Member
23 August 2017
INTRODUCTION
Ms Shales worked as a Customer Service Specialist at the Commonwealth Bank of Australia (‘the CBA’) from 2007 to 10 December 2015. Ms Shales’ employment with the CBA was terminated following a 14 month absence from work, on the basis there was no prospect of Ms Shales being able to return to an effective employment relationship within a reasonable timeframe.
On 25 November 2014, Ms Shales lodged a claim for compensation for “psychological abuse by branch manager at work in Busselton” allegedly sustained as a result of “constant psychological abuse at work by manager Natash [sic] Toovey Palmer” on 22 September 2014 (T3). On the claim form, Ms Shales indicated she had never had a similar injury or illness, work-related or otherwise.
On 22 January 2015, the CBA denied Ms Shales’ claim for “anxiety and depressed mood” sustained on 22 September 2014, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) (T37). Following a review of own motion, this determination was set aside on 4 February 2015, by a determination accepting liability for Ms Shales’ “anxiety and depressed mood” under section 14 of the Act (T40), on the basis that Ms Shales’ psychological condition was significantly contributed to by her employment with the CBA (‘the injury’).
On 15 September 2015, Ms Shales lodged a claim for permanent impairment compensation and non-economic loss in relation to her accepted “anxiety and depressed mood” condition (T65). Ms Shales claimed on the form that “the condition has resulted in anxiety, panic, loss of confidence, disturbed sleep, poor concentration, irritability, shortness of breath, fear of recurrence, social withdrawel [sic] [and] headaches.”
In support of Ms Shales’ claim for permanent impairment compensation, Dr Mark Stieler, (General Practitioner) (‘GP’) endorsed her claim form dated 15 September (T65). On the form:
(a)Dr Stieler indicates that Ms Shales’ condition will improve and that active treatment has not been completed;
(b)there is no expression of the extent of Ms Shales’ impairment given by a percentage of the whole person or the affected part, function or system. Rather, Dr Stieler stated:
“I do not have expertise to answer this question. I would advise examination & assessment by an independent medical examiner”; and
(c)the “Examining doctor’s score” and “Examining doctor’s assessment” fields in the ‘Non-Economic Loss’ portion of Ms Shales’ claim form for permanent impairment compensation are blank.
On 23 October 2015, the CBA determined that Ms Shales was not entitled to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Act in respect of her injury on the basis that there was no medical evidence to indicate that Ms Shales met the minimum whole person impairment (‘WPI’) threshold of 10% as required under subsection 24(7) of the Act (T81).
On 27 November 2015, Ms Shales requested a reconsideration of the CBA’s determination of 23 October 2015 on the basis that the determination “was wrong at law and against the weight of the medical evidence” (T85).
On 21 December 2015, the CBA affirmed its determination dated 23 October 2015 2015 (the ‘reviewable decision’) (T94). While the review delegate was satisfied that Ms Shales continued to suffer from the effect of the injury, there was “absolutely no evidence of any type that [Ms Shales has] a permanent impairment exceeding [the 10% WPI] threshold.”
On 4 March 2016, Ms Shales applied to this Tribunal for review of the reviewable decision (T1). On the application form, Ms Shales gives her reasons for the application as being “the decision is wrong in fact and law and against the weight of the medical evidence.”
RELEVANT LEGISLATION
Subsection 14(1) of the Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, as follows:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The necessary connection between a condition suffered by an employee and the employment is provided for, indirectly, by the definitions of ‘injury’ and ‘disease’ in the Act. Relevantly, subsections 5A(1)(a) and 5B(1)(a) of the Act define the terms ‘injury’ and ‘disease’ as follows:
5A Definition of injury
(1) In this Act:
"injury" means:
(a)a disease suffered by an employee;
…
5B Definition of disease
(1) In this Act:
"disease" means:
(a)an ailment suffered by an employee;
…
that was contributed to, to a significant degree, by the employee's
employment by the Commonwealth or a licensee.
[emphasis added]
In the Act, “significant degree” means a degree that is substantially more than material (section 4 and subsection 5B(3) of the Act).
Subsection 24(1) of the Act provides that where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
Relevantly, subsection 4(1) of the Act contains the following definitions:
permanent means likely to continue indefinitely.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Subsection 24(2) of the Act provides that for the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
In considering the issue of permanency and the matters listed under subsection 24(2) of the Act, “regard shall be had to any medical opinion concerning the nature and effect (including possible effect) of the impairment, and the extent, if any, to which it may reasonably be capable of being reduced or removed” (the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1), (‘the Guide’) at page 10).
Section 24 of the Act goes on at subsections (4), (5), (6) and (7) to provide that in order for permanent impairment compensation to be payable under that section, the degree of permanent impairment (other than for hearing loss), as assessed under the Guide, must be 10% or more.
Subsection 27(1) of the Act provided that where compensation is payable under section 24, Comcare is liable to pay additional compensation to the employee for any non-economic loss suffered as a result.
ISSUES FOR DETERMINATION
The key issue before the Tribunal is whether the CBA is liable to pay to Ms Shales compensation pursuant to sections 24 and 27 of the Act in respect of the injury.
The issue requires the Tribunal to consider the following:
(a)whether Ms Shales continues to suffer from the injury as defined in subsections 5A(1)(a) and 5A(1)(b) of the Act;
(b) if so, whether the injury (if still suffered) currently results in an impairment;
(c)if so, whether any such impairment is permanent, meaning ‘likely to continue indefinitely,’ as per the definition of permanent in subsection 4(1) of the Act and having regard to the matters set out in subsection 24(2) of the Act;
(d)if so, whether the degree of WPI applicable under the Guide exceeds the 10% threshold prescribed by subsection 24(7) of the Act; and if so,
(e)the degree of non-economic loss (if any) suffered by Ms Shales.
As the Tribunal has concluded (refer to subparagraph 138(a) below) that there is insufficient evidence for it to be satisfied that Ms Shales’ current symptoms relate to a psychological condition that continues to be significantly contributed to by her CBA employment, the Tribunal has not addressed the legislation nor considered the issues relevant to the whether Ms Shales’ injury currently results in an impairment, whether that impairment (if any) is permanent within the meaning of the Act, the degree of WPI applicable under the Guide or the degree of non-economic loss (if any) suffered by Ms Shales. It is not required to do so.
Nevertheless, the Tribunal has set out the facts as they may relate to the remaining issues not addressed in order to preserve the chronology and completeness of the factual picture.
EVIDENCE
The matter was heard in Perth on 28 March 2017 and 29 March 2017. Ms Shales appeared in person and was represented by Counsel, Ms Oliver. Ms Oliver was instructed by Ms Plunkett-Scott, from Maurice Blackburn Lawyers. The CBA was represented by Counsel, Mr Woulfe. Mr Woulfe was instructed by Ms Tota, from HBA Legal.
Evidence before the Tribunal
The Tribunal received the following evidence:
·Applicant’s amended statement dated 1 March 2017 (A1);
·Applicant’s Statement of Issues, Facts and Contentions dated 21 September 2016 (A2);
·Report by Dr C Nick De Felice, Consultant Psychiatrist dated 21 April 2016 (A3);
·Supplementary report by Dr De Felice dated 2 March 2017 (A4);
·Busselton Medical Practice notes (A5);
·Undated care arrangement management plan by Dr Stieler (A6);
·Patient information form by The Wishing Well Clinic dated 2 September 2014 (A7);
·Letter from Dr Mackenzie Talbot, Gynaecologist and Reproductive Endocrinologist to Dr Jo Sharpley, GP, dated 26 August 2004 (A8);
·Handwritten notes by Intrinsic Health and Wellbeing dated 11 July 2016 (A9);
·T documents (R1);
·Respondent’s Book of Relevant Summonsed Documents (R2);
·Respondent’s Statement of Facts, Issues and Contentions dated 21 October 2016 (R3);
·Supplementary report of Dr Gemma Edwards-Smith, Psychiatrist dated 5 August 2016 (R4);
·Various letters prepared by the Respondent/Maurice Blackburn Lawyers dated 11 November 2016, 8 December 2016 and 5 January 2016 (together, R5);
·DVD comprising visual footage of the Applicant obtained on the following dates:
o19 March 2017;
o20 March 2017;
o21 March 2017;
o22 March 2017;
o23 March 2017;
o24 March 2017; and
o25 March 2017 (R6); and
·Report by Thinklink Pty Ltd dated 27 March 2017 (R7).
Relevant aspects of the evidence and material before the Tribunal will be referred to below.
Relevant documentary evidence
Expert medical reports
The relevant expert medical reports in this matter are extracted as part of the evidence pertaining to each medical expert, at paragraphs 81 to 83 (inclusive) and paragraphs 96 to 99 (inclusive) below.
The Applicant’s statement
The Tribunal notes the following paragraphs from Applicant’s amended statement dated 1 March 2017 (A1):
21.Around June 2014, I received treatment by Dr Thorne. Dr Thorne also asked about my life generally and I told her similar to what I told Dr Bennett. I am told that the notes of Dr Thorne report a ‘depressive feeling’ which I assume was the way she reported my description of my emotions. I can’t remember her telling me I was depressed, or diagnosing me as depressed.
…
23. Dr Thorne also discussed a ‘Care Plan.’ At no point in time do I recall completing a Mental Health Care Plan. The Care Plan was actually a physical care plan referral to a female specialist for the physical symptoms I was experiencing at the time. She is similar to a physiotherapist and helps treat women who have just given birth to relax their womb muscles.
…
30. At home [we] have separate rooms and often sleep in separate beds, however not all the time. There are many reasons for this; we like our personal space, we like our sleep and Jason is a surf life saver. During competition season, he likes space to stretch out at night and doesn’t like to be woken up.
…
31. I have suffered from two miscarriages at the ages of 38 and 40. We weren’t actively trying to get pregnant at this time; I can’t remember if we were using contraception of not, but we were of the mindset of, “If it happened, it happened.”
…
32. I felt I managed and coped as well as could be expected emotionally during these miscarriages.
…
35. In approximately 2006 or 2007, we decided not to continue with any further treatment. If I was not going to conceive naturally, I did not want to put my body through the various chemicals needed or the financial strain of multiple fertility treatments that cost in the realm of $10,000 to $15,000 each.
36. I was content with our decision not to pursue fertility options further. I knew we had the options available, but I didn’t want to proceed with them. I have never been an overly maternal person, and have lived with the view that Mother Nature will take her course and if it is meant to happen, it will happen naturally.
…
42. I have experienced some moments of sadness and guilt not being able to have children with Jason, just as I imagine a lot of females would … I never personally felt any grief in relation to ‘missing out’ on having kids.
…
55. I am pleased that I have gained employment and I am happy that I’m trying to get back into the workforce, but I am still not coping and I do not feel that my symptoms have alleviated. My anxiety is so high that I shake regularly. I feel inadequate in the workplace and have panic attacks almost every day.
[emphasis added]
Medical notes
Consultation notes of Dr Esther Rasser (GP, Macleod Street Medical Centre) dated 18 July 2007 (R2, page 34) state relevantly and in part:
Longstanding problems with vulval dystrophy & lichen sclerosis, Now [sic] improved, but ongoing loss of libido. Also past termination because partner at the time didn’t want a child. Resentful about that … Current partner supportive, but lack of libido problematic … Given some names of psychologists in Melbourne with interest in sex therapy.
Records from Bunbury Hospital Emergency Department dated 1 October 2004 (T9, page 43) state that on that date, Ms Shales presented to the Emergency Department with a variety of presenting complaints, including respiratory, a cough and nausea. On the record, the ED Registrar recorded, relevantly:
Has been under a lot of stress over last 2 years with multiple family members diagnosed with cancer and medical illness and has been supporting them.
Was told yesterday she was not performing at work.
Consultation notes from Gibson Princi Therapy Centre dated 9 September 2015 (T8, page 36 and R2, page 25) record that at that time, Ms Shales was having ups and downs and was continuing to suffer “a few panicks” [sic] about her work and future.
Consultation notes from Gibson Princi Therapy Centre dated 5 January 2016 (T8, pages 38 and 39) record that Ms Shales was married in November 2015 and that she had been well over Christmas and the new year, with little anxiety. The notes record that Ms Shales in her “day to day” was “really great,” “out + about a lot better, sometimes still looking around à better,” and “feeling a lot better in self.”
Consultation notes from Gibson Princi Therapy Centre dated 29 March 2016 (R2, page 29) record that Ms Shales wanted to return to work, was walking around “ok” and that she had no stressors or triggers other than working in a bank.
Evidence regarding Applicant’s employment at Bendigo Bank
Following the hearing, Ms Shales’ representatives filed further evidence referred to in its written closing submissions regarding:
(a)her employment with Bendigo Bank having been terminated, effective 1 June 2017;
(b)her certification by Dr Tsoake Faso (GP, The Wishing Well Clinic) as totally incapacitated for work from 6 June 2017 to 6 July 2017 having been diagnosed with “Psychological abuse at work; suffering PTSD” on 22 September 2014; and
(c)her referral by Dr Faso to Dr Stephen Proud (Psychiatrist) on 6 June 2017 in relation to a “long standing work related psychological trauma/PTSD like presentation.”
The CBA considers that given Ms Shales did not provide evidence of this at hearing (the Tribunal noting the hearing took place two months’ prior to Ms Shales’ employment having been terminated), it is inappropriate for it to be referred to in submissions.
Ms Shales’ representative noted these objections however submitted:
(a)it is a question of procedural fairness and a matter for the Tribunal to determine the weight to be given to that evidence; and
(b)the facts presented are incontrovertible and therefore not something that would prejudice the CBA or give rise to the need for cross-examination.
The Tribunal considers addresses this evidence and the weight that ought to be given to it at paragraphs 122, 126 and 127 below.
Oral evidence at hearing
Ms Shales, Dr Edwards-Smith and Dr De Felice gave oral evidence at the hearing.
Ms Shales
At the hearing, Ms Shales gave oral evidence to the Tribunal in person. Ms Shales had earlier provided an amended statement dated 1 March 2017 (A1).
Ms Shales gave evidence before the Tribunal that she had first worked for the CBA in Bairnsdale in Victoria. Ms Shales said she then worked for the CBA’s Australind and Mornington Peninsula branches, prior to returning to Western Australia permanently to work in the Bunbury and Busselton branches.
Ms Shales said that prior to the issues she had with her supervisor in September 2014 (that led to her original claim), she had considered the CBA to be an amazing organisation and that she had had an amazing career, with her work performance going ‘through the roof’ and exceeding 600% of her work target. Ms Oliver directed Ms Shales to the undated letter from her Branch Manager at Morning Peninsula (T36, page 189) that she had achieved 675% of her target for that (unspecified) week. Ms Shales said that her Branch Manager had sent her that letter on his own accord.
Ms Oliver directed Ms Shales to two documents (T36, pages 135 and 136) demonstrating her strong work performance and Ms Shales confirmed she was aware of these documents and agreed with their content. Ms Oliver referred Ms Shales to a further number of additional documents (T36 at pages 190, 191, 192, 193, 194 and 205 to 216) demonstrating a series of references and accolades regarding Ms Shales’ work performance over the period.
Ms Shales said that her ability to perform her role to that level was “lost” when she was managed by Ms Palmer and she was unable to interact with customers in the same way. Ms Shales said that Ms Palmer’s “beef” with her was that Ms Palmer had “been after her job.” Ms Shales said that had been humiliated in front of customers and feels like everyone is laughing at her.
Ms Shales said that she no longer has a vivacious personality and that all her hard work has gone “down the drain”. Ms Shales said that she used to “smile and be real,” but now “that’s gone.” Ms Shales said she has “shut down from work and life” and no longer travels with her husband for his work. Ms Shales said she has acquaintances, but not friends and feels embarrassed when she attends at other banks for her own personal banking.
Ms Shales said that she was “pressured” to go and work at the Bendigo Bank (where she has been working full-time for the last month) as the CBA “wouldn’t train her.” Ms Shales said that Ms Kathy Boutros (Case Manager, CBA) said that Ms Shales “had to go for something”. Ms Shales said that her role at Bendigo Bank requires her to meet with clients. Ms Shales said that she “can’t do it” and that she was “scared to go back there” (after the hearing). Ms Shales said that the first time she attended to a customer at the Bendigo Bank, she started to panic, everything was “fuzzy” and that she was “waiting for the door to fly open and [Ms Palmer] to walk in.” Ms Shales said that Bendigo Bank had been “shocked” to learn that [Ms Palmer] had been a manager at Bendigo Bank six months prior to Ms Shales’ commencement.
Ms Shales said that during the previous week, a Bendigo Bank customer, who had had an account closed due to “bad conduct,” had been abusive to her. Ms Shales said that she had “sobbed” and then apologised to the customer, who in turn apologised to her. Ms Shales said she was then told to go home.
As to any previous injuries, Ms Shales said that she had jumped into a swimming pool at age thirteen and injured her pubic bone. Ms Shales added that prior to the “incident” at the CBA, she had never been diagnosed with a psychological condition. Ms Shales said that while she had had “some stressors in her life,” this [the issues at the CBA] was “pure evil.”
When asked about her current day to day psychological symptoms, Ms Shales said that sometimes she can’t get out of bed, or go past the front gate, that she is constantly looking for [Ms Palmer], “waiting for her to come at me.” Ms Shales said whilst shopping at Coles supermarket, the checkout attendant had been “lovely” to her and she had burst into tears. As to her day to day physical symptoms, Ms Shales said she has “weakness,” picks things up and drops them again, experiences tingling down the face and shaking and she is constantly wiping the side of her mouth.
Ms Shales said that she used to enjoy social yoga as a group activity and tennis but she no longer does those things. Ms Shales said that she no longer runs, she has sold her bike and now practices yoga as a solo activity.
During cross-examination, Ms Shales said that she had seen her GP once in the last month. Ms Shales said that she was currently not taking any antidepressant medication, she had not seen Ms Daniella Princi (Psychologist, Intrinsic Health and Wellbeing) in the last month and was no longer going to see her.
Ms Shales said that she was not seeing a psychologist “right now” and had not been referred to a psychologist since ceasing her attendance with Ms Princi. Ms Shales said that she had discussed with her GP being referred to a psychologist, who said it was “a good idea” for her to “carry on with Ms Princi” and that she would go if [the CBA] supports it and “covers it.”
As to other treatment modalities, Ms Shales said she exercises to deal with her symptoms, she had never tried Fluoxetine, Paroxetine or Mirtazapine, and cognitive behavioural therapy had not been recommended to her.
Ms Shales said she had presumed from the letter from the CBA dated 11 November 2016 (regarding her section 19 claim only) (R5) that “this letter was everything” and her section 16 claim was closed. Ms Shales said that notwithstanding what the letter dated 11 November 2016 actually said, that had been her interpretation, so she had contacted “Georgia” to ask if “funds were still available.”
As to her consultations with Dr De Felice, Ms Shales said she had seen him once, on 11 April 2016 and “has not been back.” Ms Shales said she had been open and honest with Dr De Felice and had given him an accurate history of her condition and her reaction to her condition.
Mr Woulfe directed Ms Shales to the following extract from the Respondent’s Book of Relevant Summonsed Documents (R2), being a consultation note dated 21 May 2015 by Dr Tammy Bennetts (GP) (R2, page 8):
2. Hot flushes over last year or so. Associated with feeling of panic. Last period ~ 2 years ago. No history of FHx of breast or uterine ca, clotting
Has tried a few natural remedies to no effect.
Has feeling of panic when has hot flushes.
Also in last year had moved and had a few relatives die and partner has been unwell. Feels stressed about this.
Discussed HRT and will trial and review
would also like to try counselling so will do a mental health care plan
discussed panic attacks and gave info. Is able to breath [sic] through sx at the moment and work full time.
[emphasis added]
When asked to comment on this extract, Ms Shales said that two of her aunties had passed away and that her partner had suffered a “bad hamstring injury.”
Mr Woulfe then directed Ms Shales to the following extract from the Respondent’s Book of Relevant Summonsed Documents (R2), being a consultation note dated 16 June 2014 by Dr Catherine Thorne, GP (R2, page 9):
Victoria 2004 – told GP she felt very depressed and saw a gaenicologist [sic]: rR Anu Sakar in Bairnsdale
who excised the peri introital skin vagina and also the vulva bilaterally involving the labia majoral folds
…
told she had lichen sclerosis : steroid cream only if needed – diprosone
…
partner has been unbelievably good : never maried [sic] and can’t have children
Carole : has switched off and not kissing cuddling now in a separate bedroom for 5 years
Explored feelings of sadness –guilt – letting Jason down etc not being able to have children grief+
menopause symptoms now as well was having huge flushes helped with HRT but has had a period on estralis sequi
LMP was 2 yr [sic] ago
happy in her bank job
[emphasis added]
As to the reference to having “felt very depressed” in 2004 in the extract at paragraph 56 above, Ms Shales said that while it was nothing like what she had experienced with [Ms Palmer], if that reference is contained within the notes, then yes, that is what she said. As to the reference to having slept in a separate bedroom from her partner for 5 years in the extract at paragraph 56 above, again Ms Shales said that she would not dispute that reference if that is what was written in the notes.
With regard to the references to “can’t have children” and “not being able to have children” in the extract at paragraph 56 above, Ms Shales said that she had never wanted children and that she is not maternal, although she did not specifically dispute that the reference made was what she had indicated to Dr Thorne. As to whether Ms Shales had ever tried to have children, Ms Shales said that she had not tried, rather it had “just happened.”
Mr Woulfe directed Ms Shales to paragraphs 33, 34 and 38 of her amended statement (A1), which state:
33.In around 2004, we decided to look at our fertility options to see if we could have a baby. It was during this period that one friend of mine was going through a fertility program trying to conceive. We discussed it between us on multiple occasions which prompted a discussion between Jason and I about the prospect of children. Jason and I decided to look into it further.
34. On 7 July 2004 I was referred by Dr Sharpley to a fertility specialist, Dr Talbot. Dr Talbot did some tests on Jason and me. In late August 2004, we thought we would see another fertility specialist for Ovulation Induction Cycle Treatment, named Amanda Crombie. I had a third miscarriage around this time. I can’t remember it very well, but I naturally felt sad and remember that my hormones felt like they were all over the place.
…
38.I do not feel as though my gynaecological condition or fertility had any adverse effect on my relationship with Jason…my gynaecological condition is not a big deal to him because it’s not ‘new to him’ anymore and it has always just formed part of our life.”
[emphasis added]
Mr Woulfe also directed Ms Shales to an undated handwritten note from Dr Foster & Associates,[1] from the Respondent’s Book of Relevant Summonsed Documents (R2), being a consultation note dated 16 June 2014 by Dr Catherine Thorne, GP (R2, page 3), “JASON Feeling unloved/unappreciated.”
[1] Dr Foster & Associates is the general medical practice in Bunbury from which Drs Bennett and Thorne conducted their practices at the relevant time.
Mr Woulfe suggested to Ms Shales that from paragraph 59 above, exploring fertility options to the extent of undergoing three miscarriages was inconsistent with her evidence (at paragraph 58 above) that she did not want to have children. Mr Woulfe also suggested the reference (at paragraph 59 above) to Ms Shales not feeling as though her gynaecological condition or fertility had any adverse effect on her relationship with her partner was incorrect in light of the feeling of sadness and guilt she had expressed on this issue to Dr Thorne on 16 June 2014 (see paragraph 56 above). Ms Shales said the correct view was that she never wanted to have a baby and her gynaecological condition or fertility had not had any adverse effect on her relationship with her partner and that “everything was fine.”
Mr Woulfe then directed Ms Shales to a number of additional extracts from the Respondent’s Book of Relevant Summonsed Documents (R2), asking Ms Shales to comment in each instance on the consistency of those extracts with her statement (at paragraph 61 above) that she never wanted to have a baby. In each instance Ms Shales verbally conceded the extract was inconsistent with her evidence that she never wanted to have a baby. The extracts were as follows:
(a)“She wants to have a baby” – Referral letter from Dr Sharpley to Dr Talbot dated 7 July 2004 (R2, page 60).
(b)“Thank you for referring Carol Shales a 43 year old lady with a history of two miscarriages and second infertility of 12 months duration. I have organised for a semen analysis on partner Jason together with a vaginal ultrasound and Hysterosalpingogram” – Letter from Dr Talbot to Dr Sharpley dated 5 August 2004 R2, page 62).
(c)“Thank you for seeing Carole Shales again, who wishes to have another attempt at conceiving. Unfortunately last years [sic] pregnancy ended in miscarriage at 8 weeks” – Letter from Dr Rasser to Dr Talbot dated 11 July 2005 (R2, page 63).
(d)“Thanks for referring Carol for me to advice. She is a 44 year old lady who has had three spontaneous miscarriages in the past, and has not been successful in trying to fall pregnant after that” – Letter from Dr Anu Sarkar (Obstetrician & Gynaecologist) to Dr Rasser dated 19 September 2005 (R2, page 65).
(e)“There have also been quite a few perimenopausal symptoms that she has developed recently. At the same time Carole mentioned that she was looking to have children and had planned on going through IVF” – Letter from Dr Sarkar to Dr Rasser dated 3 October 2005 (R2, page 66).
(f)“Carole happened to mention that that she would like a pregnancy and we have had a brief discussion about her age and other issues, and initially I am going to be carrying out a hormonal profile and semen analysis of her partner” - Letter from Dr Sarkar to Dr Rasser dated 22 December 2005 (R2, page 67).
Mr Woulfe went on to note the referral letter from Dr Faso to Ms Princi dated 22 February 2017, “for reestablishment of counselling in relation to ongoing work related stress/psychological trauma – relapsed in the past few weeks. Currently I have no further details as I have only seen Carole for the first time today” (R2, page 75). In relation to this letter, Ms Shales stated that whilst she had requested the referral be made, she hasn’t tried to get psychological treatment and rather, she practises yoga. Ms Shales said that when she returned to work (as a sales representative with Harcourts on 16 October 2016), she believed she was in a good place, then the “stressors hit,” which she “did not expect,” then she went back to her doctor.
Ms Shales said that when she saw Ms Princi she experienced an improvement of symptoms and also spoke to Ms Princi about yoga. As to the reference in Ms Princi’s notes (R2, page 30) that Ms Shales has been “keen” having seen the Bendigo Bank job advertised in the paper, “But emotional break down,” Ms Shales said that this was not the case and Ms Princi “must have made a mistake on her iPad.”
Ms Shales went on to say that she has lost confidence in the workplace due to Ms Palmer and her new manager (at Harcourts) did not like her either. Ms Shales said she took the job at Bendigo Bank notwithstanding her prior claim with the CBA and she had “told them about it in the interview.”
Mr Woulfe then took Ms Shales to a number of points in time in the DVD comprising visual (only, and not audio) footage of her on 19 March 2017 to 25 March 2017 (R6). Mr Woulfe asked Ms Shales to elaborate on the conversation and/or conduct taking place in each instance on the various dates. Ms Shales responses included, relevantly:
she was having a happy face-to-face conversation with a co-worker with whom she had a good relationship. The conversation had essentially been regarding that person ‘changing colour’ having used a spray tan;
(b)she was sitting in her car talking on the phone to a real estate agent about the potential sale of her home;
(c)she had attended the Road Traffic Authority to obtain forms for a prospective purchaser of her home;
(d)she had shopped at Coles supermarket, packed groceries into her car and driven away;
(e)she had gone walking with her husband, smiling and conversing with him as she went. Ms Shales’ explained that she would either walk in the morning or take the dog to the beach to help with building her confidence and to help with her mental and physical fitness; and
(f)while walking with her husband, she had stopped to speak to a neighbour, Nathan, for about eight minutes. They were talking about the verge pick up and how it had been a bad decision by Ms Shales to work at Bendigo Bank when she had wanted to go to “Business West.” Ms Shales said that she had been able to have a conversation with this neighbour because she was comfortable with him.
Ms Shales said that while she may have looked “entirely normal” on the DVD footage (R6), this is not how she is on the inside. Ms Shales also said that in the early days (following her injury) she was “bordering on recluse” and is in a much better state now.
Ms Shales said that since working at Bendigo Bank, in a supportive environment, she has not been experiencing the same “state of symptoms” as when the symptoms with [Ms Palmer] were at their peak.
Ms Shales said that she was keen to improve, to work with a psychologist and rehabilitation provider and to try antidepressant medication that would not give her headaches in order to “get over her problems” with [Ms Palmer]. Ms Shales said that if a program was offered she would take it in view of getting to the point where she could function at the same level as “prior to [Ms Palmer] coming along.”
During re-examination, Ms Shales said that she had known Nathan around two and a half years and he was aware of what had happened to her. Ms Shales said that she had not discussed anything personal with Nathan “in that catch up” (on the DVD footage, R6).
Ms Shales said for about six to seven months [following her injury] she could not get past the gate other than to go to her doctor.
In relation to the telephone conversations captured on the DVD footage (R6), Ms Shales said that there are no “triggers” when she speaks to people on the telephone, as opposed to face-to-face.
In relation to her attendance at the Road Traffic Authority captured on the DVD footage (R6), Ms Shales said that she was just collecting forms on that occasion and had not needed to speak to staff.
As to her being observed as smiling in the DVD footage (R6), Ms Shales said that she can experience joy with people she is comfortable with.
With regard to the references to her having sought fertility treatment in 2004 and 2005 (at paragraph 62 above), Ms Shales said she had “had a friend going through it”, so she had sought information on it and “discussed it as an option” with her husband. Ms Shales said that she did not follow through on the treatment as it “was not a natural process” and it had been toward the end of the period of consultations that she had become aware that the “IVF chemicals” were not for her.
When asked by Ms Oliver as to whether she felt any regret in not having children, Ms Shales said she had experienced sadness.
As to the reference in Dr Thorne’s notes on 16 June 2014 that in Victoria in 2004 she had told her GP she had felt very depressed (R2, page 9), Ms Shales said she had felt sad, but that “sad” and “depressed” were at “two different ends of the universe.”
When taken back to Dr Bennett’s record of 21 May 2014 that she had had hot flushes over the last year or so, associated with a feeling of panic (R2, page 8), Ms Shales said that those feelings were more like “little flutters” of a different kind to the “sheer total tingling” and panic she experienced in Busselton.
As to her evidence that she was not taking anti-depressant medication for her injury, Ms Shales said that she had previously done so, but was not doing so now because the medication gave her headaches. As to her evidence that cognitive behavioural therapy had not been recommended to her, Ms Shales said that she had heard of the term, but did not know if she had undergone this treatment.
Dr Edwards-Smith
At the hearing, Dr Edwards-Smith provided oral evidence to the Tribunal in person. Dr Edwards-Smith provided to the Tribunal the following reports:
·report dated 12 May 2015 (T53);
·report dated 14 October 2015 (T80); and
·supplementary report dated 5 August 2016 (R4).
At the hearing, Dr Gemma Edwards-Smith confirmed she had viewed the DVD footage of Ms Shales (R7).
Expert medical reports
In her report dated 12 May 2015 (T53), Dr Edwards-Smith diagnosed Ms Shales with panic disorder, due to various significant work and non-related factors and on the basis of the factual history Ms Shales provided to her. Dr Edwards-Smith considered Ms Shales would medically recover from the condition with further treatment including antidepressant medication and cognitive behavioural therapy with a psychologist. In her report Dr Edwards-Smith noted that Ms Shales did not report a past psychiatric history, ‘[S]he described herself as strong and independent, and had never desired children or marriage.” Dr Edwards-Smith’s report of 12 May 2015 also indicates that Ms Shales had stated to Dr Edwards-Smith that at that present time she did not have an intimate relationship, however she still lived (albeit independently) with her ex-partner in the home they owned together.
In her report following her second assessment of Ms Shales, dated 14 October 2015 (T80), Dr Edwards-Smith noted a considerable improvement in Ms Shales’ psychological symptoms and in her view, Ms Shales’ panic disorder had now resolved, with some residual symptoms of anticipatory anxiety in certain situations. Dr Edwards-Smith’s report of 14 October 2015 states that Ms Shales said she felt much better, more confident and more positive and that she felt that with psychological treatment she had been able to implement appropriate anxiety management techniques and she had resumed many of her usual activities with her partner, family and friends. Dr Edwards-Smith’s report of 14 October 2015 indicates that at this time, Ms Shales was seeing her psychologist once per month and she was taking an antidepressant in the morning. Dr Edwards-Smith reported that Ms Shales continued to experience occasional anxiety or panic attacks. Dr Edwards-Smith’s recommendations for Ms Shales was reported to be continued sessions with her GP and continued use of antidepressant medication (both for six months) and a further three sessions with a clinical psychologist.
Dr Edwards-Smith provided a supplementary report dated 5 August 2016 (R4), following review of additional documentation including Dr De Felice’s report dated 21 April 2016 and relevant documents produced under summons. In the supplementary report, Dr Edwards-Smith’s earlier diagnosis of Ms Shales’ panic disorder (now resolved) was unchanged by this additional evidence. The Tribunal notes the following relevant extracts from this report (R4):
1. The summonsed documents contain some information which is inconsistent with the history provided by Ms Shales to both you and Dr De Felice. Please comment on any inconsistencies that you identified in the enclosed comments.
I thought there was [sic] some inconsistencies between the personal history documented by Dr De Felice in respect of her personal relationship and that documented by me. I first saw Ms Shales on 6th May, 2015 as I summarised in my report of 12th May 2015. She told me that her relationship was of 5-6 years duration and that they had recently grown apart, and continued to live together, but independently. Dr De Felice however, on the other hand, has reported that she had been in a relationship with her partner for almost 20 years and had a very good relationship with him. She said “she had a great marriage and the couple had decided that they wouldn’t have children.”
I think it is highly relevant to review the medical records from Dr Catherine Thorne’s practice. I note that Ms Shales has attended different general practices, and it seems that she consulted Dr Thorne, obviously a female General Practitioner in respect of her long-standing history of sexual dysfunction, which Dr Thorne reported on 16 June, 2014, related to a genital injury and that she had a long-standing history of sexual dysfunction, and Dr Thorne reported that Ms Shales had been in a separate bedroom from her partner for 5 years and reported feelings of sadness and guilt “letting Jason down etc. not being able to have children, grief.” Dr Thorne has then engaged in medical assessment and treatment of the sexual dysfunction and vaginismus which had included hormonal therapy, addition of a very low dose of the antidepressant – amitriptyline, 5mg, and some relationship advice. It seems that Ms Shales was consulting Dr Thorne for these long-standing issues, and then consulted The Wishing Well Clinic and Dr Stieler, regarding the work-related concerns.
Dr Thorne also recorded that Ms Shales told her that in Victoria in 2004, she had told a general practitioner she was very depressed and had had seen a gynaecologist, and had genital surgery. She noted mood symptoms of switching off and indicates a physical withdrawal from her partner, and feelings of sadness and guilt, and I do consider that this reflects very long-standing and indeed considerable stressors which Ms Shales has not reported to Dr Stieler, myself, or Dr De Felice. Obviously, to a degree, this is understandable given the sensitive nature of these symptoms, however, it is certainly relevant in respect of the aetiology of psychological symptoms.
Dr Bennett, on 21 May, 2014, of note, reported in addition to some right shoulder symptoms and probable perimenopausal symptoms, reported that the onset of hot flushes over the preceding year had been associated with a feeling of panic when she had hot flushes, and that in the last year she had moved, had a few relatives die, and her partner had been unwell, and was feeling stressed about this. I think this is also indicative of the preceding history of psychological symptoms of anxiety, and there was some advice given regarding panic attacks, and documentation of a mental health care plan.
…
3.Does the information in the enclosed documents impact your view in respect of causation? In particular, we draw your attention to Ms Shales’ difficulties regarding having children and her relationship issues.
If so, please provide your updated opinion in respect of causation and whether you are still of the view that Ms Shales’ psychological condition was significantly contributed to by her employment.
Yes, the additional information does influence my opinion on causation. I certainly understand that Ms Shales has most likely found it difficult to discuss her long-standing gynaecological issues with independent medical assessors. However, the medical records do indicate, firstly, very significant pre-existing long-term stressors related to her sexual dysfunction and vaginismus, which has obviously had an unfortunate sequelae on her life. Dr Thorne documented Ms Shales’ description of psychological responses to an inability to have children. I do think this is relevant in respect, for example, that Dr De Felice recorded that she had not had any children by choice. This is quite obviously not the case. The relationship issues have obviously also been considerable with Ms Shales reporting to Dr Thorne that she had slept in a separate bedroom from her partner for 5 years. Ms Shales had also told me that she and her partner had basically been living separate lives. This would not be congruent with the happy marriage reported by Dr De Felice. I do therefore, consider it relevant to note that there have been very considerable pre-existing symptoms of anxiety in additional to obviously distressing personal and psychosocial stressors of relevance. Ultimately however, this is not to negate the presence of work-related stressors of relevance as Ms Shales had reported work stressors also of relevance. I think that the matter suggests that her psychological condition of Panic Disorder is multifactorial in origin, related to long-standing symptoms of anxiety, vaginismus, and perimenopausal symptoms, which seems to have triggered the first onset of frank panic attacks with work stressors being one of the contributing stressors to the onset of a period of incapacity.
4. In your opinion, does the information in the summonsed documents suggest that Ms Shales suffered from a pre-existing psychological condition? Please provide details with your answer.
Yes, the summonsed document [sic] do indicate that Ms Shales has reported a previous history of depression in 2004, and the onset of panic attacks in the context of the perimenopause, and her personal and relationship stressors, certainly in at least the two years prior to 2014, as documented by Dr Thorne.
5. If you consider that Ms Shales suffered from a pre-existing condition, do you consider that she has now recovered to the same level of psychological functioning that she was prior to the incident at work?
I think this is challenging to conclude as prior to the incidents at Commonwealth Bank, she was indeed working. Nevertheless, the reports do indicate that the rehabilitation reports and the brief psychological record from The Therapy Place, indicates that Ms Shales had been motivated to return to work and was then experiencing intervening stressors, feeling disheartened by the difficulty in finding a suitable work hardening programme and rehabilitation and that the rehabilitation itself has been an additional stressor.
I think that the pre-existing [condition] is relevant with regard to the prognosis, and does indicate the prognosis perhaps, that she is likely to continue to experience symptoms of anxiety and panic as she was indeed experiencing these prior to the work-related stressors, and hence the matters referred to in respect to the assessment of permanent impairment would be relevant, for example, distortion of thinking are likely to have been present in the longer term and not deriving from any work incident.
[emphasis added]
Evidence at hearing
Mr Woulfe asked Dr Edwards-Smith to accept that there was DVD footage of Ms Shales having jovial conversations, smiling and talking to colleagues, having a telephone conversation with a real estate agent. Mr Woulfe also said that Ms Shales was now (i.e. in March 2017) working at another bank. Dr Edwards-Smith said that if that was so then it sounds like an excellent improvement in Ms Shales’ functioning, a considerable improvement in relation to her anxiety and a significant resolution of Ms Shales’ cognitive distortions as when Dr Edwards-Smith first saw Ms Shales she was not working and did not seem confident at all.
Mr Woulfe asked Dr Edwards-Smith to accept that Ms Shales had given her evidence clearly and articulately, including in relation to the DVD footage and had established a good rapport with himself. Dr Edwards-Smith said that if that was the case, it was remarkable that Ms Shales could function so well in such a highly stressful situation and this would show a good degree of recovery and confidence. Dr Edwards-Smith also said that Ms Shales had done an excellent job in finding work and returning to work in a bank.
Dr Edwards-Smith confirmed she had recommended to Ms Shales in her report dated 14 October 2015 (T80, page 346) that she continue with the antidepressant, Escitalopram, for a further 6 months and allow further sessions with her psychologist and GP.
Mr Woulfe then asked Dr Edwards-Smith if she agreed with the following passage from Dr De Felice’s report dated 21 April 2016 (A3):
I note that Ms Shales has stopped the Escitalopram. I think it’s premature to have ceased this medication. I note that she described having severe headaches and nausea with Escitalopram, and so it’s reasonable to consider other alternatives. One might consider the use of other SSRIs such as Fluoxetine or Paroxetine in doses of 20mg daily, or Mirtazapine 30mg nocte, or there are a range of other agents that could be helpful. If she were to benefit from it I think that it would be reasonable for her continue on such treatment for another 12 months at least, or at least six months after successful rehabilitation into an alternative workforce, whichever is the greater.
Dr Edwards-Smith indicated that she did agree with Dr De Felice’s approach to Ms Shales’ treatment (at paragraph 87 above) and there was no real gulf between them on that issue. Dr Edwards-Smith added that cognitive behavioural therapy would also be very helpful and would likely result in further improvement to Ms Shales’ condition.
Mr Woulfe then directed Dr Edwards-Smith to her supplementary report dated 5 August 2016 (R4) when she had stated that the additional information she had received (particularly in relation to Ms Shales’ difficulties regarding having children and her relationship issues) had influenced her opinion on causation. Dr Edwards-Smith said that at the time of her first report (in May 2015, T53), she had been of the view that the alleged workplace bulling was a significant contributing factor to the onset of symptoms of Ms Shales’ panic disorder. Dr Edwards-Smith said that by the time of her supplementary report (in August 2016, R4), she had become aware of Ms Shales’ pre-existing symptoms and her reported previous history of depression, such that causation “was not as straightforward as it had first seemed.”
Dr Edwards-Smith said that the stress relating to Ms Shales having started a new job and to the litigation process were short term and once this had passed, she could then assess if Ms Shales’ condition was permanent. That is, in her opinion, she did not consider that Ms Shales’ condition was permanent.
During cross-examination, Dr Edwards-Smith said that while there was a clear view of Ms Shales’ emotional expression in parts of the DVD footage (R7), she wouldn’t base her diagnosis on it. Dr Edwards-Smith said that it was possible for people with panic disorder to smile at times, to give spontaneous answers to questions, that it was not uncommon for a person with panic disorder to have good days and bad days. Dr Edwards-Smith said that it was also possible for someone to appear confident on the outside but be experiencing anxiety and stress on the inside.
Dr Edwards-Smith said that there was no single factor that could conclusively indicate an improvement in Ms Shales’ condition, particularly in circumstances where Dr Edwards-Smith hasn’t had the opportunity to re-assess Ms Shales.
When it was put to her by Ms Oliver there was no reference to depressive-like symptoms in Ms Shales’ GP records (R2), Dr Edwards-Smith said that she did not necessarily accept that.
As to whether there was a chance that Ms Shales would not completely recover if she continued with medications and cognitive behavioural therapy, Dr Edwards-Smith said that while no treatment was 100% effective, these treatments would at least result in an improvement.
Dr De Felice
At the hearing, Dr De Felice provided oral evidence to the Tribunal in person. Dr De Felice provided to the Tribunal the following reports:
·report dated 21 April 2016 (A3); and
·supplementary report dated 2 March 2017 (A4).
At the hearing, Dr De Felice confirmed he had viewed the DVD footage of Ms Shales (R7).
Expert medical reports
In his report dated 21 April 2016 (A3), Dr De Felice recorded that Ms Shales had told him about the series of incidents and difficulties that had led to her workplace injury and that she and her partner had a great marriage and had no children by choice. Dr De Felice’s report dated 21 April 2016 indicates that Ms Shales told him “there was no past psychiatric history” and hence his view that “there was no pre-existing psychiatric condition.”
The Tribunal also notes the following comments Ms Shales is recorded to have reported to Dr De Felice (A3):
She hadn’t been into a Commonwealth Bank and would go out of her way around the block to avoid walking past the Busselton and Bunbury CBA. However … she didn’t avoid things on TV about the CBA.
…
She felt that the Escitalopram had helped and with all of the treatment she was starting to cope. Ms Shales said that she started going out in April or May 2015, and probably only went back to the Busselton area in about September last year, but was panicky when she did so.
Ms Shales said that nowadays she was better than at first. She said that in the last couple of months she still worried about her future employment and starting a new career. She said she wouldn’t step inside a CBA branch and when she thought of trying to return to work in another bank, she understood that Natasha had obtained a job at Westpac in Bunbury, so she decided banking wasn’t for her.
Ms Shales said that she was enjoying things more these days, could walk outside, took the dog out, could go to the beach, could even go to the Capel IGA and have a chat with people. She said that occasionally she reflected that she wasn’t working, that all of these things had happened but she could still interact okay with people. Ms Shales said that she had regained an interest in some activities, so she loved photography, cooking, and sewing. She said that the sparkle had gone from herself. She said her energy level varied. She said that her concentration and memory were good and she felt she could do a training course of some sort.
In his report dated 21 April 2016 (A3), Dr De Felice diagnosed Ms Shales with “an adjustment disorder with anxious mood” in response to workplace stressors, the subsequent management processes and the fear of further exposure to her former manager and even former work colleagues. Dr De Felice reported that a reasonable alternative diagnosis included panic disorder, as concluded by Dr Edwards-Smith. Dr De Felice also considered that (A3):
Ms Shales’ anxiety symptoms would slowly abate over time, perhaps over one to two years.
(b)He suspected Ms Shales would always have some residual increased anxiety, would always have some avoidance of the CBA and would always have an increased vulnerability to any sense of harassment in the workplace.
(c)If Ms Shales was to benefit from her antidepressant medication, it would be reasonable for her to continue on such treatment for another 12 months at least, or at least six months after successful rehabilitation into an alternative workplace, whichever is the greater.
(d)Ms Shales had benefited from psychological treatment received to date but it was appropriate to continue with that treatment on a monthly basis (and perhaps more frequently at the time of re-engagement) until she had been successfully rehabilitated back to the workforce in a new position for six months.
(e)Monthly GP appointments should continue for at least the next two years, if not longer, as Ms Shales’ GP had been central to her psychiatric treatment.
(f)Ms Shales’ symptoms were “likely to stay around at the same sort of level over the next 12 months, unless there is a very fortuitous development with regard to a return to work program where she feels very comfortable and all goes very well very quickly.” Otherwise, Ms Shales’ adjustment disorder was stable and permanent in the sense it is likely to be present for the foreseeable future.
In his supplementary report dated 2 March 2017 (A4), Dr De Felice indicated he had considered Dr Edwards-Smith’s report dated 5 August 2016 (R4) and Ms Shales’ statement (A1) and relevantly, reported as follows:
Although these matters of her vulvodynia and infertility might well have weighed on Ms Shales over the years and led to some sadness, or distress, or even feeling quite low and depressed, I don’t think there is any evidence in the documentation provided that Ms Shales suffered from a psychiatric condition related to these matters.
…
I am not sure why Dr Edwards-Smith obtained the history that Ms Shales’ relationship “was of five - six years duration” and that they had recently grown apart, and continued to live together, but independently.” That’s not what Ms Shales indicated to me, describing an over 20 year relationship and ongoing support.
…
The fact that they had been in separate bedrooms for a number of years does not mean that the relationship was dysfunctional.
…
In my opinion, Ms Shales’ statement to me that they had no children by choice is not inconsistent with the efforts she made from 2004 or so.
…
[As to] the various family stressors that had apparently troubled Ms Shales in the two years leading up to November 2014. This is noted in the consultation of Dr Bennetts dated 21 May 2014 in which Dr Bennetts writes “also in the last year has moved and had a few relatives die and partner has been unwell. Feels stressed about this. This history was reiterated in the Emergency Department summary of Dr Pugh, dated 1 October 2014, noting “has been under a lot of stress over the last two years with multiple family members diagnosed with cancer and medical illness and has been supporting them.” Certainly, these stressors might be of relevance, and it’s very difficult to tease out the extent to which these matters might have been of relevance.
…
The information I have received does not change my opinion [expressed in Dr De Felice’s earlier report dated 21 April 2016].
…
I don’t believe that Ms Shales had a pre-existing psychiatric condition She might well have had some emotional symptoms in response to life events having occurred in the 2 years prior to the workplace matters in 2014, but I have no reason to conclude that they amounted to a psychiatric disorder, for the reasons I have noted above.
…
I can’t be sure whether Ms Shales’ psychiatric symptoms are worse or the same, and I think that she should be applauded for having returned to work, and encouraged to continue with it. Nevertheless, this does come at the cost of anxiety symptoms, as she has noted in her statement. So, I conclude that Ms Shales still suffers from her [work-related] adjustment disorder symptoms.
In his supplementary report (A4), Dr De Felice notes the limitation of his opinion on the matter in that report based on not having assessed Ms Shales since April 2016.
Evidence at hearing
When asked by Ms Oliver, Dr De Felice confirmed that there was nothing in the DVD footage (R7) that changed any of the opinions expressed in his reports (A3 and A4).
Dr De Felice said he was surprised to learn that Ms Shales had returned to work, as she still had some anxiety in that environment.
Dr De Felice said that he was hopeful that further treatment would bring an improvement in Ms Shales’ condition, which would depend upon whether she responded to treatment and whether her rehabilitation into the workplace was successful. Dr De Felice said he thought that Ms Shales would be quite vulnerable to further criticism in the workplace or “the same experiences as before.” Dr De Felice said that he was not surprised that Ms Shales had experienced anxiety about her role at Bendigo Bank and had had thoughts of leaving her job, which was “not the ideal circumstance” for her. Dr De Felice said that Ms Shales could potentially do quite well if she was in the right workplace.
When asked by Ms Oliver, Dr De Felice said that he did not think Ms Shales suffered from a psychological condition prior to her workplace incident. Dr De Felice added that just because someone suffers a miscarriage or experiences fertility issues, does not necessarily mean they will go on to develop a psychological condition.
During cross-examination, Dr De Felice said that he would adhere to the treatment recommendations he expressed in his reports (A3 and A4). As to the fact that Ms Shales had ceased anti-depressant medical of her own accord, Dr De Felice said he would not have suggested that she do that.
Dr De Felice said that in the past he had recommended cognitive behavioural therapy to patients with adjustment disorder and panic disorder, which involves using behavioural techniques to challenge underlying irrational thoughts that then lead to irrational mood states. Dr De Felice said that cognitive behavioural therapy was often paired with anti-depressant medication.
Mr Woulfe asked Dr De Felice to assume that Ms Shales had not tried cognitive behavioural therapy, she was back working in a supportive environment at the Bendigo Bank and she has a good relationship with her branch manager, supervisor and co-workers, with whom she could have jovial conversations and smile spontaneously. Mr Woulfe asked Dr De Felice to also assume that during her evidence in chief Ms Shales presented as ‘smiley,’ articulate, very engaging, coherent, clear and lucid to a person (Mr Woulfe) who she would perceive as being hostile to her interests. Dr De Felice said that these assumptions would indicate a substantial recovery by Ms Shales, although he did not know if Ms Shales would ever lose her vulnerability or sensitivity to that environment. Dr De Felice said that from the DVD footage of Ms Shales (R6) it appeared she was continuing to improve and her presentation on that footage was not consistent with when she was “at her worst.” Dr De Felice said that while Ms Shales had not been prepared for questions regarding the surveillance footage, she was “okay to answer” as it “wasn’t that bad in what it showed.” When Mr Woulfe put it to Dr De Felice that the surveillance footage was damaging because Ms Shales had given evidence that she used to be a ‘smiley person’ (and is seen smiling on a number of occasions in the footage) Dr De Felice said that he took the point.
Dr De Felice said that after all [Ms Shales’] symptomatology and her return to work, which he applauds, it would be “marvellous” for Ms Shales to try medication (as well as cognitive behavioural therapy) as she is still at a “vulnerable” stage of her recovery.
During re-examination, Ms Oliver asked Dr De Felice whether Ms Shales could expect a significant improvement from cognitive behavioural therapy, in particular, whether it would make any difference to her vulnerability. Dr De Felice said that cognitive behavioural therapy could bring about a significant improvement if the patient was motivated and the therapist was skilled. Dr De Felice said that the benefit or improvement however, might be in Ms Shales symptoms, not her actual vulnerability.
CONSIDERATION
Before the Tribunal considers the issues before it, it considers it appropriate to make a number of findings with respect to the weight to be given to the evidence of Ms Shales, the surveillance evidence and the additional evidence provided by Ms Shales’ representatives following the conclusion of the hearing.
Ms Shales’ evidence
Ms Oliver in closing submitted that the Tribunal should accept Ms Shales’ oral evidence as truthful and reliable. Ms Oliver submitted that Ms Shales gave her evidence in honest and frank manner, responding to all questions in an open fashion, and did not seek to evade answering any questions. Ms Oliver submitted that Ms Shales appeared confident in giving her evidence, and Dr Edwards-Smith gave evidence that it is possible for a person suffering from a psychiatric condition to appear confident and to be able to interact with others, even if they are feeling anxious internally.
Mr Woulfe, in closing, submitted that Ms Shales’ demeanour and style of answers changed when ultimately she was confronted with video surveillance material, in respect of which it was clear that she could not manufacture responses or obfuscate. Mr Woulfe submitted that Ms Shales’ answers became much more co-operative and spontaneous, and she provided few long-winded answers of an “advocacy” style. Mr Woulfe submitted that such evidence is more likely to assist the Tribunal.
Mr Woulfe also submitted that there are a number of inconsistencies and contradictions in matters addressed by Ms Shales’ evidence, as follows:
Dr De Felice said in his supplementary report dated 2 March 2017 (A4) that Ms Shales’ statement to him that “they had no children by choice” was “not inconsistent with the efforts she made from 2004 or so” (to conceive a child) (extracted at paragraph 99 above). These matters are contrary to the evidence summarised at subparagraph 113 (b) and (e) below.
(b)Contrary to the matters set out in paragraph 38 of Ms Shales statement (A1, paragraph 59 above), Ms Shales attended Dr Foster and Associates in 2010 and 2014, during which she reported “failure,” “guilt and shame,” (R2, page 1) and that she was “not normal woman.” Ms Shales reported also that her husband, then partner, Jason, felt unloved and/or unappreciated (R2, page 3).[2]
(c)Contrary to the matters set out in paragraph 23 of Ms Shales statement (A1, paragraph 27 above), Ms Shales attended Dr Bennetts on 21 May 2014 and reported feeling stressed in the context of moving “last year,” the death of a few relatives and her partner being unwell (R2, page 8). Dr Bennetts recorded “would also like to try counselling so will do a mental health care plan (R2, page 8) (emphasis added).
(d)Contrary to the matters set out in paragraph 21 of Ms Shales Statement (A1, paragraph 27 above), Dr Thorne recorded a history on 16 June 2014 of Ms Shales telling her GP in 2005 that she felt “very depressed” and saw a gynaecologist (R2, page 9).
(e)Contrary to the matters in paragraphs 30, 31, 33 to 36 (inclusive) and 38 of Ms Shales statement (A1, paragraphs 27 and 59 above), Dr Thorne recorded a history on 16 June 2014 of Ms Shales having “switched off and not kissing cuddling now in a separate bedroom for 5 years” and “feelings of sadness-guilt-letting Jason down etc not being able to have children grief+” (R2, page 9).
(f)Contrary to the matters in paragraph 55 of Ms Shales’ statement (A1, paragraph 27), Ms Shales is presently certified fit for full time work,[3] she had to complete an interview and examinations to get her job, her present workplace is supportive of her and she has not completed all treatment.
[2] The Tribunal also notes paragraph 42 of Ms Shales’ statement (A1, paragraph 27 above) in this regard.
[3] The Tribunal notes the additional evidence provided by Ms Shales’ representatives following the close of the hearing regarding her termination of employment from Bendigo Bank effective 1 June 2017 and other matters, which is addressed at paragraphs 33 to 36 above and paragraphs 122 and 126 to 127 below.
Ms Woulfe also submitted, in closing that Ms Shales’ responses during cross-examination were given in a manner that sought, somewhat proleptically to overcome the effect of certain inconsistencies in her evidence with which she was being confronted, for example:
Ms Shales’ denial of ever wanting to have a baby (A1, paragraph 38) and that she and her husband had simply let ‘Mother Nature’ take its course (paragraph 61 above) being inconsistent with the range of measure she and her husband went to facilitate their having a baby and the letter from Dr Sharpley to Dr Talbot dated 7 July 2004 which states Ms Shales “wants to have a baby” (R2, page 60).
(b)Ms Shales’ evidence that she did not feel as though her gynaecological condition or fertility had any adverse effect on relationship with her husband (paragraph 61 above) being inconsistent with her reports to Dr Thorne on 16 June 2004, where she had said she had “switched off and not kissing cuddling now in a separate bedroom for 5 years” (R2, page 9).
(c)Ms Shales evidence that she disputed having been “keen” to apply for a job at Bendigo Bank because Ms Princi’s notes were taken on an iPad (paragraph 64 above). However, the relevant notes were all handwritten (R2, page 30), which Mr Woulfe submits demonstrates Ms Shales’ assertions “were simply convenient or without foundation.”
Mr Woulfe submits that in light of these inconsistencies, Ms Shales ought not to be regarded as “truthful and reliable” on controversial matters in circumstances where her evidence is not supported by objective evidence. Mr Woulfe submits that this would include surveillance evidence, which is referred to further at paragraphs 119 to 121 below.
Ms Oliver, by way of reply to Mr Woulfe’s submission that Ms Shales’ demeanour and style of answers changed when ultimately she was confronted with video surveillance material (paragraph 112 above) was that Ms Shales does not accept that any such change in demeanour occurred. Ms Oliver submitted, therefore, that Mr Woulfe’s submissions regarding the credibility or reliability of Ms Shales’ evidence based on her demeanour are unfair, inconsistent with the medical opinions before the Tribunal and should be given no weight.
In relation to Mr Woulfe’s submission at subparagraph 114(a) above regarding the truthfulness and reliability of Ms Shales’ evidence that she never wanted to have a baby, Ms Oliver submitted in reply that while Ms Shales sought referral to specialists to discuss fertility issues and possible treatment options, she did not actually undergo any of those treatments, which is consistent with her evidence that she and her husband decided to let ‘Mother Nature’ take its course, which effectively is a decision not to have children.
The Tribunal notes Ms Oliver has not provided any reply submissions in relation to Mr Woulfe’s submissions set out at subparagraphs 114(b) and (c) above.
Surveillance evidence
Ms Oliver, in closing, submitted that there is nothing cogent in the surveillance footage (R6), which shows Ms Shales performing activities of daily living in a manner that is entirely consistent with her reports to the medical practitioners in this case. Ms Oliver submits that the Tribunal should give no weight to this evidence in its consideration of the issues for review.
In response to Ms Oliver’s submissions regarding the surveillance footage, Mr Woulfe submitted in closing that this footage does have significant probative value. Mr Woulfe submitted that from the footage Ms Shales made a range of concessions that illustrated she was far more personally and socially efficient than her pre-hearing statements and materials implied.
By way of reply, Ms Oliver submitted that the surveillance footage did not show Ms Shales doing anything that was inconsistent with her evidence or her reports to Drs De Felice and Edwards-Smith as to her symptoms and their effect on her day to day functioning. Significantly, Ms Oliver submitted, the footage did not show Ms Shales interacting with any customers of the bank, or performing her duties at the bank.
Evidence provided by the Applicant following the hearing
Following the hearing, Ms Shales representative filed further evidence referred to in its written closing submissions regarding a number of matters (set out at paragraphs 33 to 36 above).
Findings with regard to credibility and weight
With regard to Ms Shales’ evidence, in light of Mr Woulfe’s closing submissions regarding the inconsistencies and contradictions in matters addressed by Ms Shales’ evidence (refer to paragraphs 113 and 114) and the absence of any satisfactory explanations for these (see paragraph 124 below), the Tribunal finds it necessary to take a cautious approach. This is particularly so where more direct, objective, contemporaneous evidence is available. The Tribunal makes clear that that this finding in no way criticises Ms Shales, or the way her evidence was given.
While an explanation is provided at subparagraph 117 in relation to the inconsistency noted at subparagraph 114(a), the Tribunal considers that to draw the conclusion that Ms Shales and her husband effectively decided not to have children by inferring from Ms Shales’ evidence that she did not undergo fertility treatment and they decided to let “Mother Nature take its course” would be a dangerous exercise because “Mother Nature’s course” in this context, as a matter of common sense, also entertains the possibility of a pregnancy. Therefore, the Tribunal cannot accept Ms Oliver’s submission in this regard.
As to the surveillance evidence (R6), given that the Tribunal finds there is insufficient evidence to conclude that Ms Shales’ psychological condition, as it presents currently, continues to be significantly contributed to by her employment with the CBA, it is not strictly necessary for the Tribunal to make a finding regarding the weight that ought to be given to the surveillance evidence. This is because, as the Tribunal sees it, the cogency and probative value of the surveillance evidence is predominantly related to issues relating to Table 5.1 of the Guide.
With regard to the evidence provided by Ms Shales following the hearing, Ms Shales has submitted that the facts presented in that material are incontrovertible. Respectfully, the Tribunal disagrees. While it may be the case that Ms Shales was in fact terminated from her employment with Bendigo Bank effective 1 June 2017, the letter does not state why this occurred. While the medical certificate from Dr Faso records the incapacity as relating to “psychological abuse at work” on 22 September 2014, this is based on self-reports from Ms Shales, who at the time of the medical certificate had seen Dr Faso only twice (therefore there is little else upon which for Dr Faso to base his certificate). Further, the medical certificate refers to “PTSD,” which begs the question of whether Ms Shales is in effect seeking to reopen her present application following conclusion of the hearing.
Ms Shales, in providing this evidence, has not attempted to clarify any of these matters. In any event, even if these matters were clarified, the CBA has not had the opportunity to conduct its own investigations to test this evidence. The Tribunal finds that in the circumstances, it accepts the fact of Ms Shales’ termination from Bendigo Bank on 1 June 2017, however that is the extent to which it takes this additional evidence into account.
Ms Oliver, in reply closing submissions, submits that the Tribunal should be impressed with Dr De Felice’s evidence and should accept his evidence as reliable. Ms Oliver submits that Dr De Felice’s evidence was based on a thorough review on all of the relevant summonsed documents and based on his extensive experience as a qualified psychiatrist. By contrast, Ms Oliver submits, Dr Edwards-Smiths’ evidence is less reliable for reasons including that she did not review all of the relevant summonsed documents before giving her opinion in her report dated 5 August 2016. Ms Oliver submits that as such, the Tribunal should prefer Dr De Felice’s evidence where it diverges from Dr Edwards-Smith’s evidence.
The Tribunal notes that Dr De Felice reviewed Ms Shales on one occasion (on 11 April 2016). Dr Edwards-Smith reviewed Ms Shales on two occasions (6 May 2015 and 7 October 2015). The Tribunal notes Dr Edwards-Smith also has extensive experience as a qualified psychologist, therefore their relative experience is not a point of distinction. From Dr Edwards-Smith’s report of 5 August 2016 (R4) it appears that she has in fact considered the various summonsed documents available, so without any articulation as to exactly which relevant documents were not considered, the Tribunal finds no point of divergence there also.
The Tribunal notes further that in his supplementary report (A4), extracted at paragraph 99 above, Dr De Felice states that he (still) considers that Ms Shales’ adjustment disorder is stable and permanent and that Ms Shales still suffers from her work-related adjustment disorder symptoms even though he “can’t be sure whether Ms Shales psychiatric symptoms are worse or the same.”
The Tribunal notes that the historical account of events given by Ms Shales to Dr De Felice contains a number of matters submitted by Mr Woulfe as being inconsistent with contemporaneous evidence (refer generally to paragraphs 113 and 114 above), some of this evidence also being noted by Dr Edwards-Smith as inconsistent with the personal history documented by Dr De Felice. For example, the history of Ms Shales’ relationship with her husband and their decision regarding whether they would have children (R4, page 3).
As such, and with respect contrary to Ms Oliver’s submission, if faced with a divergence of opinion between Dr De Felice’s evidence and Dr Edwards-Smith’s evidence, the Tribunal considers it preferable, prima facie, to adopt the opinion of Dr Edwards-Smith. This preference is now way makes any criticism of Dr De Felice, rather it is largely based on the evidence that was available to each doctor on the various dates of assessment.
Whether Ms Shales continues to suffer from an injury
Ms Shales’ accepted condition is “anxiety and depressed mood” sustained on 22 September 2014. Dr Edwards-Smith diagnosed Ms Shales with panic disorder (T53), which she considers has resolved (T80). Dr Edwards-Smith did not alter her view regarding diagnosis in her supplementary report (R4), however her view with respect to causation did change, which is addressed below (refer to subparagraphs 136(a), (b) and (c) below). Dr De Felice diagnosed Ms Shales with an adjustment disorder with anxious mood, conceding a number of alternative diagnoses might apply, including panic disorder as previously diagnosed by Dr Edwards-Smith. Dr De Felice maintained his view on diagnosis in his supplementary report (A4). Dr De Felice also espoused the view in his supplementary report that Ms Shales’ current condition is “work-related” (A4), despite his opinion that he could not be sure if Ms Shales’ symptoms were worse or the same. Oral evidence at hearing from Dr Edwards-Smith and Dr De Felice revealed nothing to disturb their reported opinions.
The first matter for the Tribunal’s consideration is not whether Ms Shales continues to suffer from a condition strictly labelled “anxiety and depressed mood,” (or “panic disorder” or “adjustment disorder with anxious mood” for that matter, although indeed those conditions may indeed fall for consideration depending upon the expert medical evidence) but whether she continues to suffer from a condition that is “outside the boundaries of normal mental functioning and behaviour” (Comcare v Mooi (1996) 69 FCR 439, 444). As with any medical diagnosis, the diagnosis of a psychological condition is something that has the potential to change over time as further and more recent information becomes available.
If the Tribunal finds that Ms Shales continues to suffer from a condition that is “outside the boundaries of normal mental functioning and behaviour”, the Tribunal must then consider whether this condition (being an ailment for the purposes of subsection 5B(1)(a) of the Act), as it presents currently, is one that continues to be contributed to, to a significant degree, by Ms Shales employment with the CBA and hence be a disease as defined in section 5B of the Act and in turn an injury under section 5A (as required by section 14 of the Act). Only when it is established that there remains a compensable injury under section 14 of the Act do sections 24 and 27 of the Act fall for consideration.
The Tribunal notes the following relevant evidence and submissions in this regard:
Dr Edwards-Smith, in giving her opinion that Ms Shales’ panic disorder has resolved notes “there may be some residual symptoms of anticipatory anxiety regarding certain situations (T80). In this context, the Tribunal notes the distinctions between an injury, the diagnosis of a condition and a person’s experience of symptoms at paragraph 58 of its recent decision of Bennett and Comcare [2017] AATA 1269.
(b)Dr Edwards-Smith considers there have been very considerable pre-existing symptoms of anxiety (stemming from her relationship issues) in addition to obviously distressing personal and psychosocial stressors of relevance. Dr Edwards-Smith considers Ms Shales’ work stressors to also be of relevance, but as the Tribunal sees it, Dr Edwards-Smith has identified work stress as being one of the contributing stressors to the onset of a period of incapacity (R4), as distinct from work stress being a significant contributing factor (to a condition which has, according to Dr Edwards-Smith) now resolved in any event.
(c)Dr Edwards-Smith is of the opinion that the summonsed documents indicate Ms Shales reported a previous history of depression in 2004, an opinion which the CBA relies upon to support its argument that Ms Shales’ current psychological condition is one that preceded and bears no relationship to her workers’ compensation claim.
(d)Ms Shales’ disagrees with this argument and submits that the only psychological condition from which she suffers relates entirely to her workplace bullying (although strictly speaking, she has not put forward any express evidence to this relationship being one of significant contribution) and other personal stressors have at times caused her to feel sad, distressed or ‘low,’ but not to the extent that she suffered from a psychiatric condition related to these matters, at least when compared to what she experienced during her CBA employment. Ms Shales relies on Dr De Felice’s supplementary report (A4) in support of this view. The Tribunal notes however, that this report is based on a history that is at times inconsistent with contemporaneous evidence, particularly in relation to Ms Shales’ relationship and fertility issues and the impact these have had on her. These inconsistencies, highlighted by Mr Woulfe in closing are set out at paragraphs 113 and 114 above.
(e)Dr De Felice maintains his diagnosis of “anxiety and depressed mood” and his opinion that Ms Shales still suffers from her “work-related” adjustment disorder symptoms (A4). However, the Tribunal finds it difficult to reconcile the “work-relatedness” of Ms Shales’ condition espoused by Dr De Felice in the face of:
(i)the inconsistencies drawn between the extracted summonsed documents and Ms Shales’ reports to Drs’ De Felice and Edwards-Smith (paragraphs 113 and 144 above);
(ii)the fact that Dr De Felice states himself that he can’t be sure whether Ms Shales’ psychiatric symptoms are worse or the same (paragraph 99); and
(iii)Dr De Felice’s view it is very difficult to tease out to what extent Ms Shales’ family stressors were of relevance (paragraph 99).
The Tribunal also notes, importantly, that for Ms Shales’ application to succeed it needs to be her compensable injury (as defined in subsection 5A(1)(a) of the Act), as it presents currently (which may or may not bear the same diagnostic label as it is did at the time of the original determination accepting liability) that results in the permanent impairment. Beyond that, whether or not Ms Shales suffered from a pre-existing psychological condition (unless that pre-existing psychological condition was aggravated by her CBA employment, which is not argued here) is of no consequence.
The Tribunal finds that, based on the above evidence:
(a)There is no evidence, being in the form of an opinion expressed by a medical professional, contemporaneous medical evidence or elsewhere for the Tribunal to satisfy itself that Ms Shales’ current psychological condition, however characterised and if it in fact continues to be suffered, continues to be contributed to, to a significant degree, by her employment at the CBA.
(b)The Tribunal finds that at best, Ms Shales’ employment with the CBA remains a contributing factor, along with a number of other contributing factors, none having been stated as being more or less significant than others. Even if the Tribunal were to presume from Dr De Felice’s opinion that Ms Shales’ current adjustment disorder symptoms are “work-related” that, in the context of Dr De Felice’s other evidence (for example an assignment of a WPI rating to Ms Shales “permanent impairment”), this work relationship is significant, given the matters set out at paragraphs 128 to 132 and subparagraph 136(e) above, the Tribunal prefers Dr Edwards-Smith’s opinion on these matters.
(c)There is also the possibility that, if Dr Edwards-Smith’s opinion is to be preferred over that of Dr De Felice, Ms Shales’ psychological condition has now resolved, with only residual symptoms of anxiety remaining, in which case there is no ailment per se and no contribution issue to decide. The Tribunal need not determine whose opinion is to be preferred as to whether Ms Shales’ condition has resolved or continues, as on either approach, the Tribunal finds that the evidence falls short of the required causation threshold.
The Tribunal notes that as Ms Shales has not been attending a psychologist or psychiatrist in recent times, the only additional evidence available is Ms Shales’ self-reporting of her own symptoms and sufferings that she believes continue to be related to her CBA employment. Given the credibility findings set out at paragraphs 123 and 124 above, the Tribunal places no real reliance on this evidence in determining causation.
While the evidence provided by Ms Shales following the hearing suggests there has been a recent change to her circumstances and work capacity, for reasons stated at paragraphs 126 and 127 above this evidence has very little bearing on the Tribunal’s findings.
As the Tribunal finds that there is insufficient evidence for it to be satisfied that Ms Shales’ current symptoms relate to a psychological condition that continues to be significantly contributed to by her CBA employment:
·the Tribunal is not required to consider whether Ms Shales’ “anxiety and depressed mood” suffered on 22 September 2014 currently causes impairment, whether those impairments are permanent and if so, to what degree they are permanent under the Guide;
·the Tribunal finds that Ms Shales is not entitled to receive compensation under section 24 of the Act; and
·consequently, the Tribunal also finds that Ms Shales is not entitled to compensation for non-economic loss under section 27 of the Act.
Section 14 determination remains in force
The Tribunal notes that the CBA accepted liability under section 14 of the Act for Ms Shales’ “anxiety and depressed mood” based on the evidence before it at the time. The CBA now relies on more recent evidence in support of its reviewable decision denying liability under sections 24 and 27 of the Act.
The Tribunal has made factual findings in this matter that effectively undercut the necessary findings of fact made in the CBA’s review of own motion granting liability for Ms Shales’ “anxiety and depressed mood” under section 14 of the Act. The Tribunal has done so in circumstances where it has been required to consider whether compensation should be payable to Ms Shales under sections 24 and 27 of the Act and where the CBA’s section 14 determination remains in force to the extent that it has not actually been reversed or been the subject of adverse review by the Tribunal. All of which, given the decision in Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 are within its powers.
In other words, it is acceptable for the Tribunal to find that there is insufficient evidence for it to be satisfied that Ms Shales’ current symptoms relate to a psychological condition that continues to be significantly contributed to by her CBA employment, for the purposes of considering the CBA’s liability under sections 24 and 27 of the Act, without there ever having been any reconsideration of the CBA’s determination of own motion dated 4 February 2015 accepting section 14 liability for Ms Shales’ “anxiety and depressed mood.”
CONCLUSION
Ms Shales seeks an order which would have the effect of entitling her to permanent impairment compensation and non-economic loss in relation to her accepted “anxiety and depressed mood” condition.
The Tribunal finds that whilst Ms Shales, at the least, may suffer from residual symptoms of anticipatory anxiety in certain situations, there is insufficient evidence to conclude that she presently suffers from a condition that is “outside the boundaries of normal mental functioning and behaviour” that continues to be significantly contributed to by her employment with the CBA. That is, there is insufficient evidence to conclude that Ms Shales’ continues to suffer from an injury, as defined in subsection 5A(1)(a) of the Act.
As such, the Tribunal has not considered whether Ms Shales’ “anxiety and depressed mood” suffered on 22 September 2014 currently causes impairment, whether those impairments are permanent and if so, to what degree they are permanent under the Guide.
Therefore, the Tribunal finds that Ms Shales is not entitled to receive compensation under sections 24 and 27 of the Act.
DECISION
The Respondent’s reviewable decision of 21 December 2015 that the Applicant was not entitled to compensation for permanent impairment under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is affirmed.
I certify that the preceding one hundred and forty nine paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
.....................[sgd]...................................................
Administrative Assistant
Dated: 23 August 2017
Date(s) of hearing: 28 - 29 March 2017 Counsel for the Applicant: Ms S Oliver Counsel for the Respondent: Mr P Woulfe
4
0